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While I was in Washington, I had the great fortune to spend some time in the Smithsonian's National Museum of American History. While the exhibits there showcase all kinds of Americana, the exhibit on The American Presidency (online exhibit here) really stood out, especially during Inauguration Week. While touring the exhibit, something caught my eye, and I immediately knew that I had to share it with my fellow constitutional law profs.

The presidency exhibit examines many aspects of the duties of the president (e.g., commander in chief) and also examines the checks on the presidency. As con law professors, you would not be surprised to see Congressional Acts, Supreme Court decisions, and Impeachment listed as possible limits on the president's authority. However, the Smithsonian exhibit lists two additional checks on the Presidency - public opinion and the press. With respect to the public, the exhibit states:

"Only by maintaining public support does an administration sustain its influence. Popular presidents have the ability to promote their policies, pressure members of Congress, and defend against attacks. Conversely, should a president fall sharply in opinion polls, his administration is weakened."

The proposition stated by the museum is not outlandish by any stretch. However, recent experience teaches us that the role of public opinion may be overstated for at least five reasons. First, how do we properly define what the public wants, or more specifically, when enough of the public has spoken to warrant action? While words like "mandate" are often used to legitimize a presidential agenda, upon re-election in 2004, the former Bush adminstration declared that it had a mandate, though the margin of victory was far from overwhelming. When is a mandate a mandate? When is a majority a majority?

Second, public opinion can be very fickle. While a majority of Americans now oppose the American involvement in Iraq, in 2002, a majority supported sending troops into Iraq. Moreover, a majority also believed that Saddam Hussein was somehow connected to the tragedy of September 11, which is patently not true. From this experience, we know that if the public is to hold the executive accountable, it must be informed. (More on this in a moment.)

Third, the public opinion theory likely assumes that the president has reason to care what the voters think. But does a re-elected president in the sunset of a second term have the same motivation to impress as a president in the first 100 days of his or her administration? If recent history is correct, the answer is no. During an ABC interview on the fifth anniversary of the Iraq entanglement, VP Cheney had this to say:

CHENEY: On the security front, I think there’s a general consensus that we’ve made major progress, that the surge has worked. That’s been a major success.

RADDATZ: Two-third of Americans say it’s not worth fighting.

CHENEY: So?

RADDATZ So? You don’t care what the American people think?

CHENEY: No. I think you cannot be blown off course by the fluctuations in the public opinion polls.

So, the former administration is "Exhibit A" in the case against the public opinion theory. Public opinion can only be a check to the extent that those in power care what the public thinks.

Fourth, in "Exhibit B" from the 43 administration, it is not hyperbole to state that George H.W. Bush might be the least popular president in recent memory. However, contrary to the Smithsonian's point, his administration did not appear weakened in any way. Despite public resistance to the Iraq involvement and Guantanamo Bay, Bush promised to "stay the course." If public opinion were really that critical, wouldn't we have seen some tempering of the least popular Bush doctrines as his popularity ebbed?

Finally, what is the press's role in all of this? According to the Smithsonian, "The actions of the president are closely scrutinized by an enormous press corps . . . Keeping a watchful eye on the chief executive, the press helps to curb presidential power that threatens to exceed its legal limits or the wishes of the public." (emphasis mine). However, this theory assumes that the press is actually doing its job. However, the biggest casualty of the Bush years might have been hard-nosed journalism. The New York Times even admitted that it had done a poor job in covering the facts in the lead-up to Iraq. When the people are relying on the press for information, and the press is asleep at the wheel, we end up with an uninformed populace that could potententially support clear constitutional abuses.

The potential lesson here is that perhaps legal scholars should spend more time focusing on the non-legal and extra-judicial methods of influencing a president (or Congress). If recent history is any indication, we can learn much from this exploration. Through our study, we might come to understand the lapses of the past and prevent future generations from repeating our mistakes.